SZBCF v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCF v MINISTER FOR IMMIGRATION [2004] FMCA 1006

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for the Convention reason of religion – where Tribunal wrote to applicant inviting him to comment on certain aspects of his application and requesting that he provide evidence to substantiate his claims – where applicant was invited to, and attended, a hearing before the Tribunal – where inconsistencies in the applicant’s claims impacted on the applicant’s credibility – whether the findings and reasons of the Tribunal decision evidences jurisdictional error or a denial of procedural fairness.

Migration Act 1958 (Cth), s.424A
Federal Magistrates Court Rules 2001

NARE v MIMIA [2003] FCA 554
Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZBCF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1510 of 2003

Delivered on: 9 December 2004

Delivered at: Sydney

Hearing date: 9 December 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1510 of 2003

SZBCF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He arrived in Australia on 6 June 2002.  On 28 June 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 23 August 2002 a delegate of the Minister refused to grant a protection visa and on 16 September 2002 the applicant applied for a review of that decision.

2. The Tribunal having advised the applicant that it was unable on the evidence before it to grant him a visa offered him the opportunity to attend at a hearing on 27 June 2003, which he accepted. Before that hearing a letter was written to the applicant under s.424 of the Migration Act advising the applicant that the Tribunal required his comments upon certain matters which could be relevant in making its decision. It is interesting to note the letter that was written to the applicant does not refer to the fact that the evidence may be relevant; it is just a request for the provision of further information and it ends with the following:

   “If you do not provide the additional information by 29 May 2003 the Tribunal may make a decision in the review of your case without further notice.”

3. This is a surprising statement to have made in view of the fact that the applicant had not at that time been invited to a hearing, the hearing invitation only coming on 3 June 2003.  It would seem that the Tribunal was relying on s.424C of the Act and in particular s.424C(b).  The threat…